Legal Analysis: Russia’s Right To Be Forgotten

In August 2015, ARTICLE 19 analysed the so-called “Right To Be Forgotten” Bill of the Russian Federation (‘the Bill’), which was signed into law in July 2015 and will come into force on 1 January 2016.

When introducing the Bill, Russian lawmakers referred to the 2014 ruling of the Court of Justice of the European Union (CJEU) in the Google Spain case, arguing that Russian citizens should also enjoy a “right to be forgotten.” The Bill gives Russian citizens the right to request that search engines remove links about them that are in violation of Russian law, inaccurate, out of date, or irrelevant because of subsequent events or actions taken by the citizens.

In this legal analysis, ARTICLE 19 examines the compatibility of the Bill with international standards on freedom of expression. We find that, while the Bill broadly seeks to replicate the more limited right that was recognised by the CJEU in the Google Spain case, it fails to provide the crucial safeguards for the protection of the right to freedom of expression that the CJEU had identified. In particular, Russian lawmakers have failed to carve out limitations on “right to be forgotten” when the personal information at issue is in the public interest and/or concerns public figures.

Important procedural safeguards are also missing, including the right of linked-to sites to be notified that a “right to be forgotten” request has been made in respect of their content and a requirement that search engines publish transparency reports containing sufficiently detailed information about the nature, volume and outcome of “right to be forgotten” requests. Moreover, search engines are required by the Bill to take action in relation to the Internet, i.e. all domain names, rather than .ru domains names.

ARTICLE 19 calls on the Russian Government to urgently review the Bill and ensure that its provisions comply with international human rights standards on freedom of expression.

Key Recommendations:

The new Article 110 of Federal Law no. 149-FZ On Information, Information Technologies and Data Protection included in the Bill should be entitled “right to request the delisting of search results on the basis of a person’s name;”

The applicability of the Bill should be subject to the operator having a branch or subsidiary established in the Russian Federation;

The material effect of a successful “right to be forgotten” request should be limited to de-listing search results generated on the basis of a search for a person’s name;

Any “right to be forgotten” provision should, at the very least:

contain an overarching presumption that information already legitimately in the public domain should remain in the public domain save where it has demonstrably caused serious harm to the person concerned;

a broad exception for personal information in the public interest and personal information concerning public figures.

More generally, any law granting a “right to be forgotten” should provide for balancing exercise with the right to freedom of expression, and if appropriate, set out a non-exhaustive list of indicative criteria to be taken into account when carrying out that balancing exercise.

The scope of a successful “right to be forgotten” request should be strictly limited to .ru domains.

The Bill should provide a right for linked-to sites to be notified and at the very least give them an opportunity to intervene in cases being challenged by search engines before the courts.

The Bill should require that search engines publish sufficiently detailed information about the nature, volume, and outcome of de-listing requests.